Massachusetts DUI Attorney Blog

When faced with a Massachusetts OUI Charge, a defendant has the right to choose between having a bench trial or a jury trial. If a defendant selects a trial by jury the outcome of the case will be decided by 6 jurors. The jurors will be the sole arbiters of the defendant's guilt or innocence. A person who is charged with an OUI can also choose to request a bench trial. In this case, there is no jury. The judge is the one who decides the case and it sometimes is referred to as a "jury waive" trial. In both the bench and jury trials, the judge would impose a sentence if the defendant is found guilty.

According to ABC news reports, Rima Fakih, former Miss America from Michigan, will stand trial in March on a drunken-driving charge unless a plea deal is reached. DUI plea bargains are rare for DUI cases. However, plea bargains offer DUI offenders a lighter sentence in return for a guilty plea. In Fakih's case, two police breath tests put her blood alcohol content over twice the legal limit. She claims she was not drinking and driving despite she was pulled over for weaving in and out of traffic. The officers also found an open bottle of champagne behind the driver's seat.

Fakih has been charged in Michigan with drunk driving, careless driving, and having an open container of alcohol, all misdemeanors. Lawyers carefully look over and study the facts of the case before they decide to recommend a bench or jury trial. For example, a bench trial may be suggested if the judge is known to be a good judge for the defendants or in a case where a not guilty verdict rests on a specific legal point that a judge would be more likely to recognize than a jury. In Massachusetts where a defendant may have multiple OUI charges, a bench trial would be less inclined to be recommended. In these cases, the judges would know that it was a multiple offense, where as a jury would not be told this. A judge in Massachusetts is not legally allowed to consider the fact of past multiple offenses, but this may still cloud his/her judgement.

Bench trials are most common in first or second offenses of OUI charges. Generally speaking, if a person is charged with a third offense or greater, the case would best be heard by a jury. The judge is not known until the case is set down for trial. The DUI Attorney and the motorist would discuss the advantages and disadvantages of a bench and jury trial largely on the attorney's experience with the judge that has been assigned.

Continue reading "Bench or Jury Trial- For the Former Miss America Who has Been Charged With A DUI Offense? " »

President Barack Obama's uncle, charged last month in Framingham, appeared amused in Framingham District Court by the number of journalists there to cover his OUI hearing, the Boston Herald reports.

Onyango Obama, 67, was arrested last month and charged with OUI after he allegedly nearly hit a police cruiser with his SUV after making a rolling stop through a stop sign. As the Massachusetts DUI Attorney Blog reported, some media outlets have asserted that Obama's uncle is in the country illegally. When it comes to immigrants, the smart move would be to check whether a DUI conviction -- either through a plea or a conviction at trial -- will affect a person's right to live in the country.

Either way, you should aggressively fight an OUI charge in Framingham or throughout the Boston area because a conviction has many consequences beyond the court penalties.

Onyango Obama made a brief appearance recently in Framingham District Court, where his judge set a Nov. 17 pre-trial conference in the case. Neither Obama nor his attorneys would comment to the media before or after the hearing.

The Herald reports that he and a friend giggled while sitting in the front row of the court as media members assembled for the hearing. The courtroom was packed, but mainly with other defendants awaiting arraignment.

The Herald reports that Onyango Obama had a valid driver's license and Social Security card at the time of arrest, but was in the country illegally having faced a 1992 deportation order. Immigration officials have told him to "check in" with them.

He is charged with suspicion of drunken driving; it was reported that his first call was to the White House. But one of the President's spokesman said the call was never made. Rather, it went to his boss at Conti's Liquors in Framingham.

While courtroom behavior and attire shouldn't make or break a defendant's case, it can influence how a judge treats a defendant. In this case, it appears Obama was chuckling at the thought that all those television and newspaper cameras were there to document a simple, unexciting 5-minute hearing for a DUI charge.

When the media are involved in covering a court hearing, it can put undue pressure on defendants judges and attorneys alike. It is important that defendants act and dress respectfully at all times in front of the cameras and the judge.

While the judge is called on to make decisions based on the facts and the law, they are human, too. If a defendant is acting inappropriately or in a way that tends to mock the criminal justice system or the judge, it can be bad for the defendant. While a judge can't sentence someone to more than the law allows, they do have enough discretion to make a defendant's life miserable.

This may not always happen, but courtroom behavior and attitude are important. A defendant should not speak in court unless their attorney advises them to speak and they should not react negatively to what prosecutors, the judge or witnesses say.

Being in court can be an emotional time. But it is best to remain calm and allow your Massachusetts DUI lawyer guide you through the process.

Continue reading "President Obama's Uncle Giggles in Framingham Court During OUI Hearing" »

State representative Geoffrey Diehl of Whitman is one of the co-sponsors of a bill that would increase penalties for repeat traffic offenders. The current version of Massachusetts law governing repeat traffic offenders is referred to as the Habitual Offender Statute and can be found at Chapter 90 Section 22F of Massachusetts General Laws. Click here to read the statute. Under this statute, any driver that incurs three criminal motor vehicle convictions within five years faces a four year license loss while any driver with 12 surchargable events within five years also faces a four year license loss.

The new legislation was prompted when Paul Baran of Taunton was charged with leaving the scene death resulting in Taunton District Court. According to prosecutors at the arraignment, Baran had a record of numerous traffic violations and criminal motor vehicle offenses. The prosecutor claimed that the record was one of the worst he has seen.

The proposed legislation would create a tiered system for suspensions of habitual traffic offenders. Under the new level two category, drivers who were already habitual traffic offenders would face a five to 15 year suspension for future violations. A level three category would create a lifetime ban.

Continue reading "Massachusetts legislatures propose increasing punishment for repeat traffic offenders " »

A Marshfield man is being accused of operating a power boat while he was drunk and sending he and a passenger overboard in an accident, The Patriot Ledger reports.

Some would argue that boating under the influence in Massachusetts is as dangerous as operating a vehicle under the influence. While vehicles can certainly be dangerous, so can boats and the water presents the possibility of drowning if an accident occurs. However, enforcement is sporadic, uneven and often unfair. Whether on the water or on the road, police must still prove their case. Many of the same problems exist with breathalyzers, probable cause and other evidence. Either case requires an experienced defense. If you are arrested and charged with BUI, contact an experienced Massachusetts BUI attorney today.

In the Marshfield case, 22-year-old Justin McDonald pleaded innocent to a single charge of BUI in Plymouth District Court. He is free on $10,000 bail.

According to the newspaper, McDonald and another man were boating near Scituate and that he was "a little buzzed, but I was pretty good, not drunk," a police report states. He apparently told police he had consumed about 10 beers prior to the incident, the newspaper says. When a defendant makes damaging admissions, often a defense lawyer will file a motion to suppress to attempt to have the statements excluded from evidence at trial.

After leaving a meeting with other friends, McDonald said at one point the boat's steering wheel pulled uncontrollably to the left, throwing he and his friend, 23-year-old Zac Woods of Marshfield, overboard.

After McDonald went into the water, he saw that the boat was running in a circle and realized he could be injured if he got too close. A kayaker rescued McDonald, but the article doesn't state how Woods fared.

Police boarded the boat after it stalled and noted that the throttle was in the full-speed position and there was an empty 18-pack of Coors Light beer and open cans of Jeremiah Weed, a bourbon whiskey-based drink in the boat. McDonald declined to submit a breath test.

In Massachusetts, BUI can be punished as severely as OUI. Your driver's license and boat registration will be suspended for a year. If a person is seriously injured in a boating accident where alcohol was consumed by the captain, a person can face up to 10 years in prison and a $5,000 fine.

Be safe on the water, but if you're arrested, seek an attorney who will stick by your side, assume you are innocent and work hard to prove it in a court of law.

Continue reading "Marshfield Man Free on Bail As He Awaits Massachusetts BUI Trial" »

Massachusetts OUI arrests are on the rise over the last five years according to a report in the Boston Herald. State police claims that the increased numbers are the result of increased enforcement by the police, including the use of sobriety checkpoints, also known as DUI roadblocks.
Some contend that the higher number of arrests warrants increasing Massachusetts OUI penalties, including a proposal that would require the ignition interlock device for first time offenders.

Efforts to gauge the number of drunk drivers on the road based on arrests can be misleading. The number of Massachusetts DUI convictions is substantially lower than the arrest total. Further, it is easy to get arrested for drunk driving in Massachusetts. While it is not illegal to have a drink and drive home, chances are slim that a police officer who pull someone over and smell and odor of alcohol will make an arrest. Field sobriety tests are test designed for failure, many cannot do without consuming any alcohol and are generally used to justify an arrest decision that has already been made.

It is understand that police will error on the side of making an arrest. No officer wants to take the chance with his or her employment prospects by incorrectly releasing a drunk driver back onto the road. Police officers naturally error on the side of making an arrest, leaving it to the courts, to resolve the ultimate issue of whether a motorist was under the influence of alcohol. Statistics that simply reference the number of arrest can be misleading. A more accurate depiction of enforcement efforts would be to review statistics regarding conviction rates.

An Illinois man is seeking a new trial after his attorneys discovered that prosecutors withheld thousands of taped conversations the man had from the jail with outsiders, NBC News reports.

It is Improprieties like that act as a reminder of why it is critical to always mount a Boston OUI defense or defense of other criminal charges in Massachusetts. OUI in Massachusetts is a serious crime and those cases involving injury or death can result in the loss of liberty for years or decades.

The man was convicted in February for the drunk driving death of his girlfriend's son last year. According to the report, the man crashed a car into a tree, killing the 5-year-old son of his then-girlfriend. The crash happened after the boy's mother was arrested for driving with a suspended license. A police officer gave the man the keys to his girlfriend's car after the arrest. Police said he had a .208 blood-alcohol level, about three-times the legal limit.

This is a disturbing case of poor decisions by the police and prosecution. First, if the man appeared intoxicated, the officer should have never given him the keys to a car and told him to drive home. Second, it is unconstitutional for the prosecution to withhold evidence in a criminal case.

In Stoughton, OUI involving an accident can result in jail time. Even an accident where someone is injured can cause the driver to spend years in prison, loss of driver's license and other OUI penalties.

Hiring a Quincy DUI lawyer can be one of the most important decisions you make. A bad choice and you could be saddled with thousands in fines and fees, incarceration, a ruined reputation and future job problems.

While every case is different, challenging blood and chemical testing can be a great defense, eye witnesses can be aggressively questioned and disproven and experts can be hired to combat the Commonwealth's case against you.

Continue reading "Withheld Evidence in Drunk Driving Case Shows Why Boston DUI Defense is Critical" »

The Boston Globe reports that hundreds of Vermont DUI cases could be in jeopardy because Vermont State Police may not have properly set up a machine that analyzes breath testing.

It isn't shocking to Massachusetts OUI defense attorneys that authorities continue to have problems with breath testing. We believe breathalyzers are one of the weakest forms of DUI evidence -- problems are being uncovered from coast to coast.

As recently discussed on the Massachusetts DUI Attorney Blog, hundreds of cases in California are being reviewed because of a manufacturing error. In Philadelphia, more than 1,000 cases are being reviewed because of botched breath test results. There are many defenses to Boston OUI cases and often breath testing is one of the best.

The Globe reports that whistleblowers are also bringing up complaints about unethical lab work in the Vermont cases. The problem comes from the Department of Health's maintenance of the machines that are used at police stations and barracks to test drivers arrested for suspected drunken driving. In this case, the problem may be human error that resulted in a machine operating for a year without a self-check function that assures proper functioning.

The story highlights the two problems with these tests: the possibility of human error and the likelihood of technical error. The technology behind the breathalyzer and the training of the officers involved are a continuous source of court challenges by Boston defense attorneys. Those facing a drunk driving charge in Boston and throughout Massachusetts should consult an attorney who can properly challenge these tests.

A breathalyzer is a machine that officers often ask drivers to blow into to get readings about the driver's blood alcohol level. In Massachusetts, the legal limit is .08. The machines give readings based on the person's breath.

While we often take technology for granted and usually trust that it is operating correctly, that isn't the case in DUI cases involving breathalyzers. These tests should be vigorously challenged in court. Boston OUI breath test results, if challenged successfully, can be the difference between a win and loss at trial.

Continue reading "Bad Breathalyzers Show Up in Vermont, is Massachusetts Next?" »

Massachusetts DUI arrests generally increase over the St. Patrick's day holiday weekend. While increased alcohol consumption is one factor, another important factor leading to increased arrests is that the police are on heightened patrols and generally employ DUI roadblocks during St. Patrick's day and over the weekend.

In Massachusetts and throughout the country, police departments employ increased efforts to detect drunk drivers. In defending a Massachusetts OUI charge, one issue that arises in trial is whether the officer's opinion is distorted by the fact that he is told to look for drunk drivers and expected to make arrests. A common theme at a DUI trial in Massachusetts is that a police officer's opinion is overstated and incorrect because the officer cannot distinguish innocent driving errors with drunk driving, or people with poor balance, no coordination from a stumbling drunk.

Continue reading "Increased Boston DUI patrol for St. Patrick's day weekend. " »

A snowmobile operator was recently cited for driving under the influence of alcohol after a collision in Wisconsin. While most of us immediately think of automobiles when we hear the terms "OUI" and "DUI," it's important to remember that Massachusetts' "operating under the influence" laws are broad and prohibit the public from operating almost any vehicle while intoxicated. Specifically, Massachusetts General Law (Chapter 90, Section 24) prohibits individuals from operating any "motor vehicle" while under the influence of liquor, marijuana, or other narcotics.

So what exactly is a "motor vehicle"? It may surprise you to find out that the simple term "motor vehicle" has a 240 word definition within the Massachusetts General Laws. Generally speaking, a motor vehicle is any vehicle that is designed to be propelled with motor power, rather than muscular power. The Massachusetts definition goes on to exclude certain vehicles, like trolleys, some motorized bikes, and motorized wheelchairs operated by invalids.

Under Massachusetts law, snowmobiles would probably be considered "motor vehicles," along with automobiles, motorcycles, motor boats, and golf carts. So, a simple story about a Wisconsin man charged with driving a snowmobile under the influence reminds us to enjoy all of our motorized vehicles safely this Winter.

Continue reading "Snowmobile Accident Highlights Broad Applicability of Massachusetts OUI Laws" »

Prosecutors recently arraigned a man from Methuan, Massachusetts for his 14th arrest related to driving under the influence of alcohol. The man's previous arrests originated from incidents in Maine, New Hampshire, and Massachusetts.

After the man allegedly hit a mailbox near his home, an officer spotted the suspect slumped over the steering wheel. The man first denied having anything to drink before driving, but later admitted to having three drinks between 8 and 10 PM that night. Unfortunately, it was only 8:13 PM when the suspect made that statement. Later, the man allegedly failed a field sobriety test and blew a 0.10 on a breathalyzer blood alcohol content test.

According to the North Andover Eagle Tribune, the man was charged with driving under the influence of alcohol (fifth or subsequent offense), driving after revocation of his license (subsequent offense), driving after suspension of his license for driving under the influence of alcohol, driving under the influence of alcohol while his license was suspended for driving while under the influence of alcohol, leaving the scene of a property damage accident, and a marked lanes violation.

This story is a good reminder about the sheer multitude of charges available to district attorneys who prosecute repeat OUI offenders. Each subsequent OUI related charge carries a potentially heightened sentence. After multiple OUI arrests, one can expect to face more than just a simple "driving under the influence of alcohol" charge. Instead, even when a prosecutor can only challenge a third offense, the presence of other OUI arrests on a criminal record will impact any sentencing or recommendation regarding a proposed disposition.

Continue reading "Methuean Man Faces repeat Massachusetts DUI charge after 14th arrest " »

Massachusetts State and local police will have heightened patrol to enforce Massachusetts DUI laws. During the period from Christmas to New Years, police departments in Massachusetts and throughout the country are on special alert for drunk drivers.

One common method of DUI patrol is to employ a roadblock or sobriety checkpoint. At a roadblock, every car is stopped to check to see if the motorist is under the influence. A roadblock will typically occur from the hours of 11:00 pm to 3:00 am. Another method is called a saturation patrol, which is essentially putting more officers on the street to patrol for drunk drivers in a particular area.

As a Massachusetts OUI lawyer, it is important to make sure that whenever you are driving you have not consumed too much alcohol. Unfortunately, even if you drank responsibly, you still may get arrested for an OUI in Massachusetts. The crime of drunk driving is a crime of opinion and if the officer concludes that you are under the influence you will be arrested.

Continue reading "Heightened Massachusetts DUI patrol during the holiday weekend" »

Criminal jury trials will resume in the Attleboro District Court as the repairs to the jury session caused by the fire have been completed. In May of 2010, a fire broke out on the second floor causing all criminal jury trials to be moved to Taunton District Court. The main criminal session on the first floor remained open since the fire; however, no jury trials were able to be heard in Attleboro.

David Linton of the Attleboro Sun Chronicle who covers the Attleboro District Court for the local paper reports that jury trials will begin on January 3rd in the court.

Continue reading "Jury trials returning to Attleboro District Court on January 3, 2011" »

An article in the New Haven Independent caught my attention regarding allegations against a police officer in Connecticut, James Evarts, who was suspended for six months after calling in sick for work and then hours later being arrested for DUI while carrying his weapon. It appears that Evarts had an 11 year history with the police department and was a good officer and well liked by fellow officers, given the support for him at his hearing. The officer attends to appeal the suspension.

The article is of interest to me as a Massachusetts OUI Lawyer as it shows that anyone can get charged with a DUI offense. Many of my clients are hard working individuals like the police officer who have a long history of being a good employee, a responsible parent and a law abiding member of the community. However, getting charged with a DUI offense is easy because the offense is based on the opinion of the arresting officer. It is not a crime to go out and have a few drinks and then drive. Chapter 90 Section 24 of Massachusetts OUI law imposes criminal penalties when alcohol diminishes a motorist's ability to drive safely as a result of having consumed alcohol. The instructions a jury will receive from a judge at a Massachusetts DUI trial will tell the jury specifically that is not illegal to have alcohol and drive, unless it impairs, reduces or decreases the ability to operate a motor vehicle safely.

Accordingly, it is important to hire an experienced DUI lawyer in Massachusetts to fight the charge, to contest the observations of the officer and to discredit the officer's opinion. I am available seven days a week and easy reachable by phone, 508-455-4755 or email through this site or directly at mdelsign@gmail.com.

Actress Lindsay Lohan was ordered to jail this week for violating probation and failure to undergo alcohol counseling, the New York Post reported.

A Massachusetts OUI charge carries the threat of significant penalties, including jail time, mandatory counseling, probation, fines and court costs. Sometimes defendants find themselves in additional trouble for failing to properly comply with the terms of probation.

Drunk driving charges frequently involve motorists with little or no experience with the criminal justice system. An experienced Boston OUI lawyer can make sure you understand what you need to do to remain in compliance and will have the knowledge and experience necessary to defend you if you are ever brought to the court for a probation violation hearing, sometimes referred to as a probation surrender hearing in Massachusetts.

In Lohan's case, the L.A. judge sent her to jail for 90 days for failure to attend educational classes ordered as part of her plea agreement to two DUI arrests in 2007. Lohan had fallen behind in class attendance and had been ordered in December to begin attending once a week. Instead, she missed seven weeks of classes and a court date in May when she was at the Cannes Film Festival and said she lost her passport.

The actress was ordered to report to jail on July 20. Jail personnel said she would likely serve about 25 percent of her sentence, or about 25 days behind bars. Lohan was sentenced to 30 days for reckless driving, and 30 days for two separate DUI arrests that came in May and July of last year.

The judge also ordered Lohan to enter an inpatient substance abuse treatment program within two days of her release. Prosecutors were not allowed to introduce evidence that Lohan's alcohol monitoring bracelet indicated she had consumed alcohol on June 7, the night of the MTV Movie Awards.

It is the latest is a series of legal problems for the actress, who had her probation revoked in May after missing a hearing stemming from a three-year-old drug and alcohol case.

Continue reading "Jail sentence for Lindsey Lohan highlights risks of Massachusetts probation violations" »

The New Mexico Supreme Court ruled that a police officer can make a DUI arrest without a warrant even when the defendant is inside his home and the police did not observe the motorist drive. The case is City of Santa Fe v. Marcos Martinez.

In the Martinez case, the police received a tip from a mall employee that Martinez was drunk and tried to unlock several vehicles before speeding away. The police tracked down Martinez's vehicle at his house; when he came to the front door, the officers claim that he was falling down drunk. The officers felt the hood of Martinez's car which was still warm at the time.

When the officer came to the front door, he could see the defendant staggering in his house. The defendant then reached up to unlock the door. The officer then entered the residence without a warrant.

The New Mexico Supreme Court found that the actions of the officer were proper under the State's misdemeanor arrest rule. The Court did not address the Constitutional issue of whether the defendant's arrest was valid under the Fourth Amendment to the United States Constitution and accordingly, remanded the case to the district court.

This case raises in interesting issue for a Massachusetts OUI lawyers to consider. Under the United States Supreme Court decision of Welch v. Wisconsin, 466 U.S. 740 (1984)
a police officer cannot enter a home to make an arrest without a warrant for a misdemeanor.

This rule appears to have been violated in this case when the officer entered the house without a warrant to make a DUI arrest, which under Massachusetts OUI law would be a misdemeanor offense. The State would likely argue that the defendant gave consent to enter by unlocking the door; however, the court should find that unlocking the door does not constitute the actual consent necessary to justify a warrantless entry of a home under the 4th Amendment.

The case raises a second Constitutional question as to whether the store employee gave the officer a sufficient description of the motorist to even justify any seizure of the motorist.

Continue reading "Police can make DUI arrest without observing the motorist driving the New Mexico Supreme Court rules" »